NJ Appeals Court Upholds Dismissal of Hostile Work Claim

The New Jersey Court of Appeals has ruled that an Asian-American firefighter who was clearly harassed on one-occasion by a ranking officer, was not subjected to a hostile work environment and thus does not have a right to recover from the fire department. Firefighter Timothy Burkhard filed suit against the City of Plainfield and former Deputy Fire Chief Pietro Martino alleging a violation of the New Jersey Law Against Discrimination.

The incident triggering the suit was explained by the court as follows:

• On March 13, 2020, plaintiff and the other firefighters on his shift attended a COVID-19 training program Martino presented.
• Plaintiff dozed off during the training.
• Martino approached plaintiff, squinted his eyes to parody stereotypical Asian facial features, and asked plaintiff if he had just returned from Wuhan.
• Nineteen firefighters, including a battalion chief and five lieutenants, witnessed the incident.

Burkard complained to his union, who brought the matter forward to the fire chief. The matter was investigated promptly and in the interim Burkard was assured he would have no further contact with Chief Martino.

On April 6, 2020, Burkard met with the fire chief, the union, and the deputy chief of operations. He was told that Chief Martino would be disciplined. Chief Martino went on terminal leave until his retirement. He never returned to active duty, and as a result was never issued any discipline, which according to the court would have been a written reprimand.

Burkhart’s suit contended the city should be held liable because it allowed the harassment to occur and because Chief Martino was never disciplined. The Union County Superior Court granted the city’s motion for summary judgment, prompting Burkhart to appeal. The Court of Appeals affirmed the trial court, reasoning as follows:

• [T]he trial court determined defendant had an effective anti-discrimination policy and enforced that policy promptly. On that basis, the trial court granted summary judgment dismissal. This appeal followed.
• Plaintiff contends the trial court erred… because defendant’s policies were not effective in stopping the discrimination and were not enforced promptly as Martino was never formally reprimanded for his discriminatory conduct.
• Plaintiff’s argument that the City’s anti-discrimination policy was ineffective because other firefighters attending the training program did not report the discriminatory conduct does not persuade us.
• Nor does plaintiff’s contention that the affirmative defense was not established because the reprimand letter was never served on Martino.
• The record shows Martino was on terminal leave and did not return to duty.
• The failure to transmit the reprimand letter to an employee who was already on terminal leave does not alter the fact that defendant promptly determined Martino’s conduct was inappropriate and deserving of discipline.
• Because Martino was no longer an active member of the force, it is reasonable to assume Martino would have no further contact with plaintiff at the workplace.
• Importantly, the record clearly shows plaintiff was not subjected to discrimination before or after the COVID-19 training incident.
• [P]laintiff did not suffer any tangible change in his position, duties, or compensation.
• Indeed, the record shows the fire department supported him.
• In these circumstances, we do not believe that the failure to deliver the written reprimand renders defendant’s overall response ineffective for purposes of the affirmative defense.
• Articulated another way, issuing the reprimand letter to an employee already on terminal leave awaiting retirement was not needed to ensure that employee would not commit another discriminatory act in the workplace.
• Furthermore, the failure to transmit the reprimand letter in these circumstances does not signal that defendant would tolerate future workplace discrimination or otherwise fail to enforce its anti-harassment and discrimination policy.
• In sum… we conclude plaintiff failed to raise a material fact disputing the offensive conduct that gave rise to plaintiff’s complaint was promptly and effectively addressed.
• After reviewing the evidence in the light most favorable to plaintiff, we are satisfied the evidence relevant to the affirmative defense is so one-sided that defendant must prevail as a matter of law.

A copy of the decision is included below. The case points to the importance of a department responding promptly to allegations of discrimination and/or hostile work environment claims. Too often the mentality is to “circle the wagons” and take a defensive posture. In this case, a  prompt investigation followed by decisive action to protect the complainant led to the city prevailing.